Justice Watch: The Alliance for Justice Blog

June 2012

Anyone who cares about fairness and good sense in social policy should count Thursday’s decision a victory – as most progressives are doing.

At the same time, we should be clear on this: The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the ACA.

Justice Roberts saved the constitutionality of a humane and centrist piece of social legislation. Gutting it would have been radical, and it is striking that four justices would have done so. Roberts also confirmed the view of the Constitution that made the attack on that law plausible. That constitutional view is itself radical. It affirms that the Court belongs at the heart of this issue, and guarantees its future role in similar controversies.

The fact that the Court came so close to gutting the law, and is being celebrated for withholding the knife, is a mark of how far the public has accepted aggressive judicial review of legislation that should not be constitutionally suspect.

Roberts accepted that Congress cannot require individuals to purchase health insurance under its power to regulate interstate commerce. On his logic, if Congress had this power, it could also require people to buy cars or healthy food – the infamous broccoli example.

This may not matter much in practice. Roberts upheld the requirement to purchase insurance under the separate Congressional power to tax by interpreting as taxation the fee for not purchasing health care. The requirement to purchase is unusual policy design, and it is hard to imagine a similar law that could not be written to survive this combined commerce-and-taxation scrutiny. The ruling on the Commerce power may be mainly symbolic. For nearly 20 years, the Court’s conservatives have insisted on limits to the Commerce power while not doing much of consequence with those limits. This opinion may be another of those rhetorical rulings.

That said, consider the way the Roberts opinion invites us to envision the world. We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces. The democratic process is not enough to protect us from such palpably unpopular laws. We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere.

To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government. You also need to see consumer liberty as a touchstone of American freedom. For almost eighty years, constitutional law has assumed that Congress and state legislatures can be trusted to make economic judgments (better trusted than courts, anyway) under democratic scrutiny, and that individual economic freedom is not a constitutional liberty. To be swayed by the Roberts opinion, you need to squint at the world in quite the opposite way.

The opinion’s rhetorical embrace of Tea Party constitutionalism should worry people who think complex problems like health care unavoidably require complex – and politically possible – solutions. Congress adopted the individual mandate to deal the insurance companies into the political bargain, as conservative reformers had long urged. If not for the saving thread of the taxing power, Roberts’s opinion would have left no solution to the health-care crisis that was both politically viable and constitutionally permitted.

The other major part of the Roberts opinion held that the federal government cannot withhold Medicaid funds from states as a punishment for the states’ failing to adopt the ACA’s expansion of Medicaid eligibility to 133% of the federal poverty line. Roberts argued that the threat to withdraw Medicaid funding is “a gun to the head” that impermissibly coerces the states. The idea is that, since the federal government cannot directly tell the states which laws to pass, giving them an offer they cannot afford to refuse amounts to dictating their Medicaid legislation.

For many decades, Congress has been influencing state legislation with fiscal carrots and sticks – offering money to fund policies it likes, withholding funds when states don’t pass desired laws. If you ever wondered why every state sets the drinking age at 21, it’s because they would lose federal highway funds if they set it lower. The Court has previously made a muted noises about possible limits to this use of Congress’s “spending power” to influence states, but this is the first time it has actually set a limit to that power. This is a new, and potentially big, roadblock to federal policy-setting. It intercedes the Court between Congress and the states and guarantees future challenges to spending legislation.

How much it will matter to the ACA’s anti-poverty effect depends on how many states will simply refuse to expand Medicaid, now that they know they can’t lose their existing funding for doing so. The number may be large, given political hostility to the Act, which would mean more people without health coverage and more people crossing state lines in search of more generous care – part of the reason Congress aimed for uniformity.

Beyond the ACA, the Medicaid expansion ruling signals more aggressive federalism jurisprudence on a new front: limiting Congress’s use of fiscal power to shape uniform national policy. Both here and in the Commerce Clause ruling, the Court encourages state resistance to federal lawmaking and, especially, litigation that advances new federalism arguments (like the commerce power decision) or presses the edge of old ones (like the spending power ruling).

It is revealing that Justice Scalia’s dissent for four conservatives does not really stake out a different view of the Constitution from Chief Justice Roberts’s. It mostly exhorts the Chief Justice to apply his principles more exactingly, with less scruple for upholding the challenged law. The constitutional premises of this opinion represent a conceptual and rhetorical victory for the right. Time, and the November election, will tell how far that victory will go.

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Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.

The Supreme Court issued its long-awaited decision on the Affordable Care Act this morning, upholding the individual mandate and the remainder of the Act by a slim 5-4 majority, comprised of Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The only partial defeat for the government was the Court’s holding that the Medicaid provision – which conditioned federal funds on states’ acceptance of expanded Medicaid coverage – must be interpreted narrowly such that states that refuse to expand their Medicaid programs lose federal funding only for the expansion, but not for the current, unexpanded versions of their programs. In the context of the health care law itself, this was unquestionably a positive ruling. Yet, in its reasoning, the decision must be understood as laying the groundwork for dismantling the New Deal state.

Supporters and opponents of the law waited outside the Supreme Court building this morning

The opinion surprised Court watchers for two reasons. First, it was Roberts’ vote that mattered, as he and the four liberal-moderate justices voted to uphold the Act, while Kennedy dissented along with Scalia, Thomas, and Alito. (The most common predictions had Kennedy as the swing vote and Roberts joining Kennedy wherever he landed). Second, the majority opinion, written (as universally predicted) by the Chief Justice, upholds the mandate as a tax, based on Congress’ power to “tax and spend.” The four liberal justices joined him in that conclusion, which is thus the law of the land and the part of the opinion binding on the lower courts.

But significantly, while the liberal justices would have also upheld the mandate under the Commerce Clause, the Chief Justice insisted that the mandate was not a valid exercise of Congress’ power to regulate interstate commerce. The four conservative dissenters would have struck down not only the mandate but the entire Affordable Care Act as unconstitutional under the Commerce Clause, and accuses the majority of re-writing the statute by considering the mandate as a tax.

“Roberts gave the conservatives a very big gift—a ticking time bomb that could explode in cases down the line.”

AFJ President Nan Aron

While the dissenters used some choice words, accusing the majority of “vast judicial overreaching,” the truth is that Roberts has now enshrined the heretofore non-existent distinction between economic “activity” and “non-activity” in the Court’s Commerce Clause jurisprudence. Writing only for himself in that portion of the opinion, his musings on the topic are not binding precedent. Nonetheless, by demonstrating a willingness to narrow Congress’ power to regulate interstate commerce, Roberts has invited further challenges to any number of federal laws and regulations.

An overwhelming majority of federal laws — from the Civil Rights Act of 1964 to the Fair Labor Standards Act to the Clean Water Act — were enacted based on Congress’ power to regulate interstate commerce. If our long-standing understanding of the Commerce Clause is upended, all of this is at risk, along with the vision of our society that we have held dear for half a century.

As Justice Ginsburg writes in her opinion, concurring in part and dissenting in part from Robert’s opinion, “[t]he Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” She writes “[i]t is a reading that should not have staying power.” As we digest the Court’s decision in the weeks to come and look ahead to the very important cases coming before the Court during its next term, Justice Ginsburg’s warning should not be forgotten.

The Supreme Court ruled on Monday in the case of Miller v. Alabama that mandatory life sentences without the possibility of parole for juveniles convicted of homicide are unconstitutional. At the heart of the Court’s opinion is the Eighth Amendment to the U.S. Constitution, forbidding “cruel and unusual punishment.” Significantly, the Court held that states may not require judges to institute life sentences without the possibility of parole, but did not institute a flat ban on such sentences, even though the ramblings of the dissenting justices would suggest otherwise.

The defendants in these consolidated cases were both fourteen years old at the time of their crimes. Kuntrell Jackson was charged with felony murder after a friend shot a store clerk at the video store they were attempting to rob. The evidence is inconclusive as to whether or not Jackson threatened the store clerk, but it is undisputed that he did not pull the trigger. The other defendant, Evan Miller, was the product of an abusive household and multiple foster homes. Miller dealt the decisive blow that killed his mother’s drug dealer while under the influence of drugs and alcohol.

The prosecutor who charged Miller had the option of pursuing the case in juvenile court, but instead tried him as an adult and triggered the mandatory life without parole rule passed by the Alabama legislature. In Alabama and Arkansas, anyone convicted of murder is subject to life without parole, without regard for age or any other potentially mitigating factor. A total of twenty-nine states impose mandatory life without parole sentences on juveniles convicted for murder. As of today, there are more than 2,500 prisoners serving life without parole sentences for crimes they committed as children.

Monday’s historic ruling is the most recent in a line of cases bringing the United States closer – but far from all the way – to conforming with international human rights norms regarding criminal punishment, particularly with regard to children. In Roper v. Simmons (2005), the Supreme Court ruled that it was unconstitutional to impose a capital sentence on a juvenile. Two years ago, the Court ruled in Graham v. Florida that juveniles charged with nonviolent offenses may not be sentenced to life without parole under the Eighth Amendment. Striking down the state laws that impose an automatic life without parole sentence on juveniles tried for murder was a natural next step in this progression.

Writing for the majority, Justice Kagan harkens back to the Court’s reasoning in Roper and Graham, which suggested that none of the goals of criminal punishment – deterrence, incapacitation, retribution, or rehabilitation – could justify sentences for juveniles as harsh as those meted out to adults. Kagan describes important distinctions between juvenile and adult offenders, including juveniles’ “underdeveloped sense of responsibility,” the incomplete development of the behavior-control part of their brains, increased vulnerability to negative influences, and “less fixed” character traits. Highlighting the importance the Court has previously placed on individualized sentencing schemes, she writes, “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” She adds that the mandatory scheme also precludes consideration of a juvenile offender’s home environments, the circumstances of his crime, the ways in which his immaturity can affect the prosecution itself, and the possibility of rehabilitation, which ought to be most relevant when the offender is a child.

Three justices wrote separate dissents supporting the mandatory sentencing laws. Chief Justice Roberts claims that since these sentences are so commonplace, there is no national consensus for striking them down. Essentially, the Chief Justice believes that since too many states have been wrong on this issue the Supreme Court should let these laws stand.

Justice Alito takes us down a slippery slope in his dissent, worrying that the Court’s narrow ruling would serve to free a hypothetical 17-½-year-old who “sets off a bomb in a crowded mall or guns down a dozen students.” This is misleading, since Alito’s teenaged terrorist could still be sentenced to life without parole after today’s ruling. But Alito isn’t the only one on the highest court that seems a little paranoid.

Justice Thomas believes the Eighth Amendment only serves to prohibit “torturous methods of punishment.” He vehemently argues in his dissent that “even accepting the Court’s precedents, the Court’s holding [today] is unsupportable.” It is well-known that Thomas has his own notions of legal precedent, but in this case his skepticism seemed fueled by concerns that echoed Justice Alito’s dissent. Thomas worries that the majority will later impose a flat ban on juvenile life without parole sentences. And perhaps it will, according to the “evolving standards of decency that mark the progress of a maturing society,” an evocative phrase that has become the hallmark of the Court’s Eighth Amendment jurisprudence. It is not surprising that this prospect would horrify Justice Thomas, whose views on the Eighth Amendment suggest that everything but torture should be on the table when sentencing offenders, including juvenile offenders.

For those of us living in the 21st century, however, today’s ruling was a step in the right direction.

The Supreme Court’s 2011-12 term, which will end this week with a hotly anticipated ruling on the constitutionality of the Affordable Care Act, has been dubbed the “term of the century” by some legal observers. But at the same time that the Court is issuing landmark rulings on topics from juvenile justice to immigration enforcement to health care reform, the Court is also deciding which cases it will hear next term — accepting a number of cases with tremendous implications for corporate accountability. The Court’s grants of certiorari in these cases are a worrying sign that the Court is prepared to travel even further down the road of stifling corporate accountability.

Here are a few of the corporate cases that the Court agreed to hear next term:

Comcast v. Behrenddeals with the ability of plaintiffs to collectively hold cable provider Comcast accountable for violations of antitrust law. As is often the case with class action lawsuits, the theoretical option of each plaintiff to sue individually isn’t a real option, because the financial cost of Comcast’s alleged violations to each individual is a small amount. Unless plaintiffs have the option of proceeding as a class, corporations like Comcast can violate the law without accountability. Comcast argued unsuccessfully before the Third Circuit that the plaintiffs should not be permitted to proceed as a class unless they first made a number of onerous merits showings. However, the Supreme Court — which has recently shown hostility to class action lawsuits in cases like Wal-Mart v. Dukes and AT&T v. Concepcion — may be poised to reverse the Third Circuit and erect additional barriers to corporate accountability through collective consumer lawsuits.

FTC v. Phoebe Putney Health Systemdeals with the question of whether healthcare provider Phoebe Putney Health System can escape federal antitrust liability when it achieves monopoly status through the intervention of the state legislature. The Eleventh Circuit Court of Appeals held that the doctrine of state action immunity, which prevents states from being held liable for violations of federal antitrust law, extends to Phoebe Putney, a private provider of health care services that achieved monopoly status after an agency of the Georgia state government, acting at Phoebe’s behest, purchased Phoebe’s largest competitor and then sold it to Phoebe. A decision by the Supreme Court to affirm the Eleventh Circuit’s opinion in this case would carry dramatic implications for antitrust accountability, allowing private entities to avail themselves of antitrust immunity simply by persuading state agencies to become complicit with them in anti-competitive practices.

Vance v. Ball State Universitydeals with the question of whether an employee who has been the victim of racial harassment in the workplace may hold her employer liable under Title VII of the Civil Rights Act of 1964 if the party engaging in the harassment lackedthe authority to fire or formally reprimand the employee. The plaintiff, Maetta Vance, was the sole African-American employee of Ball State University’s Banquet and Catering Department. Over a period of more than two years, she was subjected to physical abuse and racial taunts by co-workers who formally lacked the authority to fire or reprimand her, but who had been directed to supervise her work. She eventually filed a complaint with the Equal Employment Opportunity Commission, seeking to hold the university vicariously liable for the harassment under a rule that establishes vicarious liability for a supervisor’s violations of Title VII. The Seventh Circuit, however, rejected Vance’s vicarious liability claim. If the Supreme Court affirms this ruling, it will have the effect of allowing employers to escape accountability for failing to prevent sexual and racial harassment in their workplaces, even where, as in Vance’s case, the employer ignored repeated internal complaints that the victim of the harassment filed.

Finally, the Supreme Court accepted a series of cases involving environmental damage caused by corporations. Georgia-Pacific West v. Northwest Environmental Defense Center and Decker v. Northwest Environmental Defense Center both deal with challenges to the Ninth Circuit Court of Appeals’ determination that rainwater runoff from ditches and drainpipes associated with logging roads falls into the category of pollutant sources that require a permit from the Environmental Protection Agency under the National Pollutant Discharge Elimination System. The Ninth Circuit’s ruling has come under heavy attack by the logging industry, which claims that the economic impact of a rule requiring them to pay for pollution of rainwater runoff from industry roads would place too great a burden on their industry.

Additionally, the Court agreed to hear the case of LA County Flood Control District v. Natural Resources Defense Council, which raises a question regarding the interpretation of the Clean Water Act (“CWA”). The Court has previously stated that transfer of water within a single body cannot constitute a “discharge” within the meaning of the act. The LA County Flood Control District case raises the question of whether that precedent can protect the LA County Flood Control District from liability under the CWA for discharging pollutants into the Los Angeles and San Gabriel rivers through the municipal storm sewer system.

Together, these cases raise the possibility that the Court is prepared to bow to corporate pressures to roll back the Clean Water Act’s protections against spoliation of natural resources. The defendants in these cases have taken an extreme position that they should be beyond the reach of the laws and agencies put in place to protect our environment: In the words of one witness in the LA County Flood Control case, they “could not be held accountable even if its discharges “were so polluted with oil and grease that they were on fire as they came out of the system.”

This coming Supreme Court term may not rival the “term of the century” that will draw to a close this week in terms of media attention, but if the cases on the docket are any indication, it will nonetheless be an important term for those who care about corporate accountability. We will see whether the the Court intends to continue down the path that it has traveled in cases like Citizens United v. FEC and AT&T Mobility v. Concepcion, or whether it will turn back the legacy of corporation-friendly rulings that has earned it the moniker the Corporate Court.

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